DATE: Friday, March 14, 1997                TAG: 9703140620

SECTION: LOCAL                   PAGE: B1   EDITION: FINAL 

SOURCE: BY MARC DAVIS, STAFF WRITER 

DATELINE: VIRGINIA BEACH                    LENGTH:   56 lines

JURY DECIDES IN FAVOR OF BEACH IN GIRL'S DEATH

A jury ruled Thursday night that the city is not responsible for the 1991 death of an 8-year-old girl in an unusual accident on the Oceanfront Boardwalk.

After two days of testimony, the Circuit Court jury found that Virginia Beach could not have foreseen the freak accident that killed Melissa Ann ``Missy'' Chapman in December 1991.

The girl's parents, Donald and Linda Chapman, had sought $4 million. The seven-member jury deliberated 30 minutes before reaching its verdict at 7 p.m.

Thursday's verdict is a 180-degree reversal of a previous jury's finding. The case was tried before in 1995. That time, a jury awarded the Chapman family $300,000, but a new trial was ordered on appeal.

``I think this verdict confirms our view of the case all along,'' Deputy City Attorney Richard J. Beaver said Thursday night. ``Although it was a very sympathetic case from the plaintiff's point of view, we were never satisfied that there was liability. We felt it should have been defended.''

Missy, a third-grader at Plaza Elementary School, was visiting an aunt at the Breakers Motel on 16th Street and Atlantic Avenue when the accident happened.

Missy and her 4-year-old sister were playing behind the motel, feeding crackers to birds and swinging on a gate to the beach.

The gate provides access for emergency vehicles. It is supposed to be locked when not in use. That day, half the gate was broken off, lying in the sand. The other half swung freely.

Missy was swinging her baby sister on the gate when she somehow caught her head in it. She dangled from the gate for several minutes while her sister watched and cried. A passing jogger found her and a motel clerk freed her. She died two days later.

The parents' attorney, William D. Breit, argued that the city was grossly negligent for ignoring repeated requests to fix the broken gate before the accident. He said the tragedy could have been prevented.

But the city's attorney, L. Steven Emmert, told the jury that the accident could not have been foreseen. He argued that the broken gate was not an obvious or immediate danger. He called Missy's death a freak accident.

The first time this case was tried, a jury ruled against the city and awarded the Chapmans $300,000, plus $18,618 for funeral expenses and medical bills.

Later, however, Circuit Judge Thomas S. Shadrick reversed the jury's verdict, ruling there was not enough evidence to establish gross negligence by the city. The Chapmans appealed.

In September, the Virginia Supreme Court overturned Shadrick, ruling there was credible evidence to support the jury's verdict. Citing other errors, the court ordered a new trial.

To win against the city, the plaintiffs had to prove ``gross negligence,'' or reckless disregard for public safety and health, and not just simple negligence or error. KEYWORDS: LAWSUIT FATALITY ACCIDENT GENERAL

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